Monday, November 11, 2013

This week’s shiur discussed the question whether you can
make a neder on a davar sh’lo bo l’olam-something which is not here. The Rambam
in Hilchos Erachin (6:30-32) says that a neder on a davar sh’lo bo l’olam works
and his rayah is from Ya’akov. Ya’akov promised Hashem that he would bring
ma’aser from whatever Hashem would give him and later on at the end of the
Parsha we find that Hashem calls that a neder. In Hilchos Mechirah (22:17) the
Rambam also brings this halacha but he writes it a little differently. In
Hilchos Erachin he writes “if a person says ‘I will give any fish that I catch
to Hekdesh’ then it works”. In Hilchos Mechirah he writes “if a person says ‘I
will give any animals born to Hekdesh’ or ‘Any animals born will be hekdesh’
then it works”. In Hilchos Mechirah he brings both a case of “I will give” and
a case of “it will be”. In Hilchos Erachin he only brings the case of ‘I will
give”. The Raavad in Hilchos Mechirah argues on the Rambam that only a case of
“I will give” works but the other case of“it will be” does not work. The question is what are they arguing about
and why does the Rambam only bring one case in Erachin and both cases in
Mechirah?

There are a number of mehalchim in the achronim to explain
this Rambam. Rav Moshe in the Dibros Moshe Nedarim (Siman 6 anaf 5,6) presents
one explanation. He writes that there is a machlokes rishonim whether you can
make a neder on a mitzvah. Can one make a neder to say ‘I will learn this
perek’. A neder is usually an issur on a cheftzah so how can it apply to an
action? The Ran holds you can’t and when the gemara says that you can make a
neder to say ‘I will learn this perek’, it really means you are making a
shevuah. Other Rishonim like the Ramban and Ritva hold the neder works. Rav
Moshe explains that they learn this from tzeddaka. The gemara in Rosh Hashana
says one can make a neder on tzeddakah, so if a neder on tzeddakah works so too
a neder on a mitzvah will work. The Ran will tell you that neder on tzeddaka
doesn’t work b’toras neder but rather we saythe rule of“amiraso l’gavoah
k’mesiraso l’hedyot” applies even to tzeddaka and not just hekdesh.
Therefore,when you say you give it to
tzeddaka it is like the ani made a kinyan on it.

Rav Moshe explains that this is the machlokes between the
Rambam and Raavad. The Rambam holds a neder on tzeddaka works like a neder and
therefore even on a davar sh’lo bo l’olam a neder can work. You can obligate
yourself through a neder to bring something or make somethingtzedaka in the future. Even a loshon of “it
will be tzeddaka” should work. The Raavad however will tell you that using the
loshon of “I will give” is a loshon of neder. But saying “it will be” is not a
loshon of neder but more lie a loshon of nedava and that only works through the
din of “amiraso l’gavoah k’mesiraso l’hedyot” and that can not work on a davar
sh’lo bo l’olam.